Collectively bargained owner?

[MoShawn]

Situation with prospective client. Owner's son works for the company, earns more than $105,000, and owns more than 5% of the stock. This is a company in the construction industry and excludes union employees.

The son currently is a member of a union and accrues benefits under the union pension plan. Can he be covered under the 401(k) plan without covering all union employees? It would seem that you cannot have a collective bargaining agreement with benefits the subject of "good faith" bargaining when one of the individuals is also an owner of the company?

Any opinions/suggestions?

[ERISAnut]

You are correct in your analysis; not if his retirement benefits are covered under the collective bargaining process.